A man who caught a trespasser trying to steal a license plate shouldn’t have been convicted of battery for whacking the intruder with a broom handle and then landing a few haymakers, a dissenting judge held Friday.

The majority of an Indiana Court of Appeals panel affirmed Thomas Birge’s Class A misdemeanor conviction, holding in a not-for-publication opinion that the evidence against Birge was sufficient to rebut his defense-of-property claim.

According to the record in Thomas Birge v. State of Indiana (NFP), 49A02-1404-CR-231, Birge was convicted in a Marion County bench trial of assaulting David Russell. Birge caught Russell trying to remove a license plate from a vehicle parked on Birge’s property.

Judge Margret Robb wrote for the majority, joined by Judge James Kirsch, that Birge was entitled to use force against Russell under the defense of property statute, I.C. § 35-41-3-2(d)-(e), but that the amount of force Birge used was excessive.

"Birge confronted Russell and told him not to touch the vehicle. Russell immediately complied and stepped away from the vehicle. After an exchange of words, Birge left the area where the argument took place, returned with a broom handle, and began striking Russell with the broom handle. Thereafter, Birge punched Russell in the face multiple times. These attacks rendered Russell unconscious and left him with bruised arms, a fat lip, and a black eye. Notably, throughout the course of this confrontation, Russell neither attempted to strike Birge nor was in possession of a weapon. Thus, the evidence supports a conclusion that Birge’s force was unreasonable in light of the urgency of the situation," Robb wrote in upholding the conviction.

Judge John Baker, though, wrote that he would reverse Birge’s conviction, finding that his actions were “protected and countenanced” by the statute.

“The majority concludes that the State negated Birge’s claim of self-defense by establishing that Birge used unreasonable force. I cannot agree,” Baker wrote. “Birge asked Russell to stop removing the license plate, and Russell complied. Birge and Russell then engaged in a heated argument, however, and Russell did not leave Birge’s property. Birge obtained a broom handle and struck Russell with the broom handle. Russell still did not leave Birge’s property. Birge and Russell then engaged in a physical altercation, during which Birge struck Russell with his fist. Birge was exercising his statutory right to defend his property, which Russell repeatedly refused and/or failed to leave. I do not believe that the use of a broom handle and a fist constitutes unreasonable force as a matter of law.”

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Dave Stafford joined the staff of the Indiana Lawyer as a reporter in May 2012 and was named editor in October 2017. An award-winning print journalist for more than 30 years, Stafford has worked as a reporter and editor at newspapers including the Herald Bulletin in Anderson, Indiana, the News-Journal in Daytona Beach, Florida, and the Times-Dispatch in Richmond, Virginia. He and his wife, Denise, live in their hometown, Indianapolis.